Democracy-Assisting Judicial Review and the Challenge of Partisan Polarization

This Article recommends abandoning the democracy-assisting idea and instead exploring ways to prevent the Court from being enlisted in extreme and unrepresentative causes. Reform ideas should focus on increasing and regularizing turnover on the Court and encouraging the selection of more representative Justices, an outcome made more likely by increasing the representativeness of the elected officials who choose the Justices. Absent a crisis, of course, it is highly unlikely that any such reforms will be adopted. Nonetheless, it is a worthwhile exercise to think about how to enhance representational and consensus-building processes in the presence of growing partisan polarization. And it is a more valuable exercise than simply imploring the Justices be less partisan or suggesting that they defer to today’s laws that represent such fragile legislative compromises. Institutions and processes, and the incentives they create, must be changed if behavior is to be changed. The best we can do for the Court and for American democracy in 2020 and beyond is to construct better electoral processes that produce more representative leaders who, in turn, select more representative Justices, which aids the quest for true constitutional consensus

Democracy-Assisting Judicial Review and the Challenge of Partisan Polarization

This Article recommends abandoning the democracy-assisting idea and instead exploring ways to prevent the Court from being enlisted in extreme and unrepresentative causes. Reform ideas should focus on increasing and regularizing turnover on the Court and encouraging the selection of more representative Justices, an outcome made more likely by increasing the representativeness of the elected officials who choose the Justices. Absent a crisis, of course, it is highly unlikely that any such reforms will be adopted. Nonetheless, it is a worthwhile exercise to think about how to enhance representational and consensus-building processes in the presence of growing partisan polarization. And it is a more valuable exercise than simply imploring the Justices be less partisan or suggesting that they defer to today’s laws that represent such fragile legislative compromises. Institutions and processes, and the incentives they create, must be changed if behavior is to be changed. The best we can do for the Court and for American democracy in 2020 and beyond is to construct better electoral processes that produce more representative leaders who, in turn, select more representative Justices, which aids the quest for true constitutional consensus

Restoring the Balance of Power: The Struggle for Control of the Supreme Court

The PDF for the April, 1929, course catalog at Texas Technological College is 70 pages long

Partisan Supremacy: How the GOP Enlisted Courts to Rig America\u27s Election Rules

“I have no agenda,” US Supreme Court Chief Justice John Roberts proclaimed at his Senate confirmation hearing: “My job is to call balls and strikes and not to pitch or bat.” This declaration was in keeping with the avowed independence of the judiciary. It also, when viewed through the lens of Roberts’s election law decisions, appears to be false. With a scrupulous reading of judicial decisions and a careful assessment of partisan causes and consequences, Terri Jennings Peretti tells the story of the GOP’s largely successful campaign to enlist judicial aid for its self-interested election reform agenda. Partisan Supremacy explores four contemporary election law issues—voter identification, gerrymandering, campaign finance, and the preclearance regime of the Voting Rights Act—to uncover whether Republican politicians and Republican judges have collaborated to tilt America’s election rules in the GOP’s favor. Considering cases from Shelby County v. Holder, which enfeebled the Voting Rights Act, to Crawford v. Marion County Election Board, which upheld restrictive voter identification laws, to Citizens United and McCutcheon, which loosened campaign finance restrictions, Peretti lays bare the reality of “friendly” judicial review and partisan supremacy when it comes to election law. She nonetheless finds a mixed verdict in the redistricting area that reveals the limits of partisan control over judicial decisions. Peretti’s book helpfully places the current GOP’s voter suppression campaign in historical context by acknowledging similar efforts by the postCivil War Democratic Party. While the modern Democratic Party seeks electoral advantage by expanding voting by America’s minorities and youth, arguably hewing closer to democratic principles, neither party is immune to the powerful incentive to bend election rules in its favor. In view of the evidence that Partisan Supremacy brings to light, we are left with a critical and pressing question: Can democracy survive in the face of partisan collaboration across the branches of government on critical election issues?https://scholarcommons.scu.edu/faculty_books/1511/thumbnail.jp